In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1891
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TARON CHERRY,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 15‐cr‐30101‐MJR — Michael J. Reagan, Chief Judge.
____________________
ARGUED OCTOBER 26, 2016 — DECIDED MAY 4, 2017
____________________
Before FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Taron Cherry was indicted for
various charges involving heroin distribution and gun pos‐
session. Without a plea agreement, he pled guilty to all four
counts of the indictment and was sentenced to 106 months’
imprisonment. Cherry now challenges the district court’s ap‐
plication of U.S.S.G. § 2K2.1(a)(3), which enhanced his base
2 No. 16‐1891
offense level for possession of a firearm capable of accepting
a large capacity magazine. Cherry argues that he construc‐
tively possessed the firearm at issue as it was actually pos‐
sessed by an alleged co‐conspirator. However, Cherry pled
guilty to possessing the firearm and never stated that his pos‐
session was merely constructive. This is fatal to his appeal, so
we affirm the district court’s sentence.
I. BACKGROUND
On May 16, 2015 in East St. Louis, Illinois, an off‐duty po‐
lice officer observed a gray Dodge Charger driving slowly
down a line of parked cars as a passenger engaged in what
appeared to be hand‐to‐hand drug transactions. When
marked police cars responded to the area, the Charger sped
away. After crashing into another car, the four occupants got
out of the Charger and attempted to run away. But the officers
caught two occupants, Taron Cherry (the driver), and a pas‐
senger and alleged co‐conspirator, Detrell Crews.
In the Charger, the officers found hundreds of individual
capsules of heroin, numerous effects related to the sale of her‐
oin, and a Glock Model 23, .40 caliber pistol. They also found
a Smith & Wesson 9 mm pistol with sixteen rounds in the
magazine and one round in the chamber, in a trash can where
Crews had been observed throwing an object. The trash can
was a few feet from where Crews was arrested.
A. Indictment and Plea
A grand jury indicted Cherry on four counts and he pled
guilty to all four counts without a plea agreement: Count 1
charged conspiracy to distribute heroin, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C) and 21 U.S.C. § 846, Count 2
No. 16‐1891 3
charged possession with intent to distribute heroin, in viola‐
tion of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2,
Count 3 charged possession of a firearm in furtherance of a
drug trafficking crime (“a Glock, Model 23, .40 pistol … and a
Smith & Wesson, 9 mm pistol”) (emphasis added), in viola‐
tion of 18 U.S.C. § 924(c)(1)(A), and Count 4 charged being a
felon in possession of a firearm (referencing only the Glock),
in violation of 18 U.S.C. § 922(g)(1).
B. Sentencing
The probation officer submitted a presentence investiga‐
tion report prior to the sentencing hearing. Consistent with
the sentencing guidelines, Counts 1, 2, and 4 were grouped.
See U.S.S.G. §§ 3D1.3(a) and (b) (2014). The report stated that
the base offense level was 22 for the grouped offenses under
§ 2K2.1(a)(3), which applies “if (A) the offense involved a
(i) semiautomatic firearm that is capable of accepting a large
capacity magazine … and (B) the defendant committed any
part of the instant offense subsequent to sustaining one felony
conviction of … a crime of violence.” A semiautomatic firearm
capable of accepting a large capacity magazine is one that
“had attached to it a magazine or similar device that could
accept more than 15 rounds of ammunition.” U.S.S.G. § 2K2.1
cmt. n.(2). It is uncontested that the Smith & Wesson meets
this definition as it had attached to it a magazine loaded with
sixteen rounds of ammunition. Also, there is no dispute that
§ 2K2.1(a)(3)(B) is satisfied as the offense was committed after
Cherry was convicted of First Degree Assault, a crime of vio‐
lence. The base offense level was then adjusted upward by
two for obstruction of justice and downward by three for ac‐
ceptance of responsibility resulting in a total offense level of
4 No. 16‐1891
21. With a criminal history category of III, the guideline im‐
prisonment range was 46 to 57 months.
Cherry filed an objection to the report, arguing his offense
level for the grouped offenses should not have been calcu‐
lated according to § 2K2.1(a)(3) as his possession of the Smith
& Wesson was constructive because it was his alleged co‐con‐
spirator, Crews, who actually possessed the Smith & Wesson.
Cherry argued that because his constructive possession was
based on his participation in the conspiracy, a finding had to
made that the firearm’s ability to hold a large capacity maga‐
zine was reasonably foreseeable to Cherry and was in further‐
ance of the jointly undertaken criminal activity under
§ 1B1.3(a)(1)(B). The government responded that no such
finding was required and that the enhancement was correctly
applied since Cherry pled guilty to knowingly possessing the
Smith & Wesson in Count 3, making it relevant conduct under
§ 1B1.3(a)(1)(A).
The district court agreed with the government and found
a base offense level of 22 for the grouped offenses. After ad‐
justments, it found a total offense level of 21 and sentenced
Cherry to 46 months on the grouped offenses. Because Count
3 required a mandatory minimum sentence of 60 months to
be served consecutively, Cherry was sentenced to a total of 106
months’ imprisonment.
Cherry appeals his sentence, alleging that application of
the sentencing enhancement under U.S.S.G. § 2K2.1(a)(3) to
the grouped offenses was improper. Cherry argues that, be‐
cause his possession of the Smith & Wesson was constructive,
the district court was required, pursuant to U.S.S.G.
§ 1B1.3(a)(1)(B), to find he could reasonably foresee that the
Smith & Wesson was capable of accepting a large capacity
No. 16‐1891 5
magazine and that such capability was in furtherance of the
jointly undertaken criminal activity before it could apply the
base offense level enhancement, and that its failure to do so
means he should receive a new sentencing hearing.
II. ANALYSIS
Generally, we review a district court’s legal application of
the sentencing guidelines de novo and its factual findings
supporting a sentencing enhancement for clear error. United
States v. Shamah, 624 F.3d 449, 458 (7th Cir. 2010) (internal ci‐
tations omitted). Here, however, the government argues that
Cherry forfeited his argument requiring foreseeability of the
firearm’s capability to accept a large capacity magazine by not
clearly raising the issue in district court. If forfeited, we re‐
view for plain error. United States v. Martin, 692 F.3d 760, 763
(7th Cir. 2012). Cherry contends that the argument was clearly
presented to the district court, both indirectly through his
written objection and more specifically at the sentencing hear‐
ing. We need not resolve the issue of forfeiture, however, as
Cherry’s appeal fails under either standard of review.
A. Cherry Pled Guilty to Possessing the Smith & Wes‐
son
When calculating the correct advisory guidelines range for
an offense, the sentencing guidelines instruct district courts to
consider “the offense of conviction and all relevant conduct
under § 1B1.3.” U.S.S.G. § 1B1.1 cmt. n.(1)(H). Here, the
grouped offenses of conviction were for drug possession, con‐
spiracy, and possession of the Glock. Importantly, none of the
grouped offenses included the Smith & Wesson. So inclusion
of the Smith & Wesson when determining the guidelines
6 No. 16‐1891
range for the grouped offenses is only permissible if its pos‐
session qualifies as relevant conduct under § 1B1.3.
Cherry argues that because Crews actually possessed the
Smith & Wesson, the district court was required to apply
§ 1B1.3(a)(1)(B), which applies only to jointly undertaken
criminal activity. Under § 1B1.3(a)(1)(B), relevant conduct in‐
cludes “all reasonably foreseeable acts … of others in further‐
ance of the jointly undertaken criminal activity that occurred
during the commission of the offense of conviction.”(2014).1
So Cherry argues that the district court was first required to
find that Crews’s possession of a firearm was reasonably fore‐
seeable to Cherry. If it found it was reasonably foreseeable,
Cherry argues that the district court would then have to find
that the firearm’s capability to hold a large capacity magazine
was reasonably foreseeable to Cherry and in furtherance of
the jointly undertaken criminal activity before applying the
sentencing enhancement under § 2K2.1(a)(3) to the grouped
offenses.
Cherry is correct that had the Smith & Wesson been pos‐
sessed by Crews and not by Cherry, the district court would
have been required to “make an individualized determina‐
tion that the defendant should have foreseen” his co‐con‐
spirator’s possession before finding Cherry’s constructive
possession was relevant conduct. See United States v. Ramirez,
1 Cherry was sentenced under the 2014 version of the sentencing
guidelines. In 2015 § 1B1.3(a)(1)(B) was updated, though no substantive
changes were made. It now states that relevant conduct in the case of
jointly undertaken criminal activity includes “all acts and omissions of
others that were … in furtherance of that criminal activity, and … reason‐
ably foreseeable … that occurred during the commission of the offense of
conviction.”
No. 16‐1891 7
783 F.3d 687, 689 (7th Cir. 2015). However, Cherry knowingly
and voluntarily pled guilty to possession of the Smith & Wes‐
son in Count 3 without any agreement or reservation that his
possession was merely constructive. Instead, Cherry admit‐
ted that he actually (not constructively) possessed the Smith &
Wesson.
As Cherry’s counsel acknowledged at oral argument,
counsel “should’ve done a better job [and] blocked out the
fact that the weapon was the co‐defendant’s,” because lack of
any such caveat forecloses Cherry’s opportunity to now argue
his possession was constructive. Since Cherry admitted his
possession was actual, it is clearly relevant conduct under
§ 1B1.3(a)(1)(A) as it was an act committed by Cherry that oc‐
curred at the same time as the commission of the offense of
conviction (i.e., the grouped offenses). See U.S.S.G.
§ 1B1.3(a)(1)(A). Because Cherry’s possession of the Smith &
Wesson is relevant conduct under § 1B1.3(a)(1)(A), we need
not consider whether § 1B1.3(a)(1)(B) requires a district court
to make findings that a firearm’s capability to accept a large
capacity magazine was reasonably foreseeable to a construc‐
tive possessor and in furtherance of jointly undertaken crimi‐
nal activity before applying the § 2K2.1(a)(3) enhancement to
the constructive possessor’s base offense level.
Cherry wisely concedes that his constructive possession
argument does not rely on the notion that it must be foresee‐
able to or known by a defendant personally liable for posses‐
sion of a firearm capable of accepting a large capacity maga‐
zine that it had such capacity. Though we have not yet con‐
sidered whether application of the enhancement requires that
an actual possessor have knowledge or reason to believe that
8 No. 16‐1891
the semiautomatic firearm is capable of accepting a large ca‐
pacity magazine, see United States v. Rice, 673 F.3d 537 (7th Cir.
2012) (defendant did not appeal district court’s conclusion
that possession alone is sufficient for enhancement where de‐
fendant argued he was unaware of firearm’s large capacity
magazine), the plain language of the guideline – that “the of‐
fense involved a semiautomatic firearm that is capable of ac‐
cepting a large capacity magazine” – suggests no such
knowledge requirement. U.S.S.G. § 2K2.1(a)(3)(A)(i).
We also see no reason to distinguish the firearm’s capabil‐
ity of accepting a large capacity magazine from the character‐
istics contained in the § 2K2.1(b)(4) enhancement (i.e., stolen
or altered or obliterated serial number), which apply “regard‐
less of whether the defendant knew or had reason to believe”
the firearm had such characteristic. U.S.S.G. § 2K2.1 cmt.
n.(8)(B). The difference between the enhancements is simply
that § 2K2.1(a)(3) applies only where the defendant’s posses‐
sion occurred subsequent to sustaining a felony conviction for
a crime of violence or a controlled substance offense. It would
be peculiar to enhance a first‐time offender’s sentence for pos‐
session of a firearm with an altered serial number regardless
of his knowledge of such characteristic, but then require that
a defendant who has previously been convicted of a crime of
violence have knowledge that the firearm possessed in the of‐
fense was capable of accepting a large capacity magazine to
apply the enhancement under § 2K2.1(a)(3).
Because Cherry admitted that he knowingly possessed the
Smith & Wesson, a semiautomatic firearm with a large capac‐
ity magazine, during the commission of the grouped offenses
of conviction, and because no knowledge that the firearm had
No. 16‐1891 9
the capability of accepting a large capacity magazine is re‐
quired, Cherry’s actual possession of the Smith & Wesson was
relevant conduct and the district court correctly applied the
§ 2K2.1(a)(3) sentencing enhancement.
III. CONCLUSION
We AFFIRM the judgment of the district court.
United States v. Taron Cherry
Combined Opinion